Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 1967

Dunasemant and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1967 (22 June 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4297
Re:Luke Dunasemant
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:22 June 2022
Place:Sydney

The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.................................[sgd].......................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations – impact on victims – impediments if removed – links to the Australian community – degree and commitment to rehabilitation – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Adams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 831
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahmed and Minister for Immigration and Border Protection [2018] AATA 4458
Ali and Minister for Home Affairs [2018] AATA 2512
Ali v Minister for Home Affairs [2018] FCA 1895
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dang and Minister for Home Affairs (Migration)I [2018] AATA 2095
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 570
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13
Falzon v Minister for immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
Fox v Percy [2003] HCA 22
Fu (Migration) [2018] AATA 732
FYBR v Minister for Home Affairs [2019] FCAFC 185
Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Kholi and Minister for Immigration and Border Protection [2017] AATA 1326
Lee and Department of Immigration, Local Government & Ethnic Affairs (1991) 24 ALD 531
Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2022] AATA 424
Li v Minister for Immigration and Multicultural Affairs [1999] FCA 870
LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039
Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 215
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
Minister for Immigration and Ethnic Affairs v Daniele [1981] 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575
Nigro v Secretary to the Department of Justice [2013] VSCA 213
Nguyen and Minister for Immigration and Border Protection [2017] AATA 1157
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
QKJY and Minister for Immigration and Border Protection [2017] AATA 820
QKVH v Minister for Home Affairs (Migration) [2018] AATA 1855
R v JT [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
Salazar-Arbelaez and Minister for Immigration and Ethnic Affairs [1977] 1 ALD 98
Shi v Migration Agents Registration Authority [2008] HCA 31
Slynt v Slynt [2017] FamCA 812
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Vargas and Minister for Home Affairs [2019] AATA 3409
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural and Indigenous Affairs [2020] FCAFC 90
XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Alcoholics Anonymous (New Zealand): < Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 5th ed, 2020)
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Victoria Ojeda, Christopher Magana, Jose Burgos and Adriana Vargas-Ojeda, “Deported men’s and father’s perspective: The impacts of family separation on children and families in the U.S” (2020) 11(148) Front Psychiatry
REASONS FOR DECISION
Chris Puplick AM, Senior Member
22 June 2022
PART ONE: INTRODUCTION
An application on remittal

This matter comes before the Tribunal, remitted for determination according to law by order of the Full Federal Court.[1]
[1] Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13.
On 14 September 2018 the visa held by Mr Luke Dunasemant (the Applicant) was cancelled as mandated by the provisions of subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).
Pursuant to subsection 501CA(3)(b) of the Act the Applicant was invited to make representations to the Minister seeking revocation of the mandatory cancellation. He did so, but on 14 July 2020, the Minister (via his Delegate) made a decision not to revoke the mandatory cancellation (s 501CA(4)), and the Applicant was so notified on 16 July 2020.
On 17 July 2020 the Applicant made an application to the Tribunal (first Tribunal) for a review of the Minister’s decision. On 7 October 2020 the Tribunal made a decision which affirmed the Minister’s non-revocation decision.
On 24 February 2021 a single judge of the Federal Court dismissed an appeal against the Tribunal’s decision. However, on 17 February 2022 on appeal the Full Federal Court set aside the decision of the primary judge, ordered that the decision of the first Tribunal (7 October 2020) be quashed and the matter remitted to the Tribunal to be determined according to law.
By decision of the President of the Tribunal the matter was remitted to this Tribunal for hearing which took place on 18 and 19 May 2022.
The effect of the decision of the Full Federal Court is that the only matter now before the Tribunal is an application for review of the Minister’s decision on 14 July 2020 not to revoke the mandatory cancellation of the Applicant’s visa (s 500(1)(ba)).
As such, this is a de novo hearing of the application with the Tribunal standing in the shoes of the decision-maker[2] and considering the evidence as presented at the time of the hearing.[3]
[2] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[3] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
However, two matters should be noted. The first is that in its decision-making the Tribunal is bound to apply the instructions of any Ministerial Direction issued under subsection 499(2A) of the Act. Such Directions specify the matters which the Tribunal must take into consideration in making its determination.
The Ministerial Direction in force at the time of the reviewable decision being made by the first Tribunal, was Ministerial Direction 79 which came into effect on 28 February 2019. However, on 15 April 2021 this was superseded by Ministerial Direction 90 which is, as explained below, materially different in some key respects from its predecessor. Thus the statutory basis upon which the Tribunal’s decision will be based is not exactly the same as that upon which the original reviewable decision was based.
The second point of difference is that the provisions of subsection 500(6L) which impose a time constraint on the Tribunal to deliver its determination by a specified date, or else the Minister’s decision is taken to have been affirmed, are not applicable to matters heard on remittal.
Although both the original decision of the Tribunal and the transcript of evidence given in those Tribunal proceedings were placed in evidence in this hearing,[4] the Tribunal emphasises that the only relevant and reviewable decision is that of the Delegate made on 14 July 2020.
[4] Respondent’s Remittal Bundle at 383-488 and 496-593 respectively.
The hearing was conducted with the Applicant and several of his witnesses in person before the Tribunal and other witnesses participating from interstate via the Microsoft Teams platform. The Applicant was legally represented in these proceedings.
PART TWO: THE APPLICANT
Applicant’s personal narrative
The Applicant’s personal narrative is set out in a variety of documents before the Tribunal including psychological reports from Ms Esperanza Egan and Mr Matt Visser.[5] There are further details in submissions by the Applicant himself [6] and in written statements submitted by members of his family.[7] In addition, much of this personal narrative was the subject of evidence-in-chief and cross examination of the Applicant and witnesses in the Tribunal hearing.
[5] First Egan Report, Applicant’s submissions at [9.2]; Second Egan Report, Applicant’s submissions at [9.1]; Visser Report, Applicant’s submissions at 7.
[6] Applicant’s submissions at 4.1; G-documents at 61-104.
[7] Statutory Declarations dated 25 April 2022, Applicant’s submissions at [4.2] and [4.3].
From that material the following may be adduced, wherein none of the relevant details is challenged by the Respondent:
(a)The Applicant was born in New Zealand in 1982. The family into which he was born was one marked by a high degree of dysfunctionality and domestic violence. Both he and his mother were subject to high level of physical violence (including beatings) and emotional abuse by his father who, at some time in his early childhood,[8] was convicted on child sex offences and sentenced to a term of imprisonment of 12 years.
(b)At the age of two years the Applicant fell into a swimming pool and almost drowned. He was rescued and resuscitated by paramedics and placed in intensive care for a month. It is alleged by his mother (without corroborative medical evidence) that the Applicant suffered subsequent mental health problems due to oxygen deprivation.[9]
(c)At the age of approximately nine years the Applicant appears to have been removed from his mother’s care and custody and sent to a residential facility for troubled youths (Waimokoia). The Applicant stated in evidence that he was sexually molested in this facility which led, after about 12 months, to him being removed from there by his grandmother who took him to live with her in Fiji.
(d)Apparently he resided there from around 1991 to 1994 when, as a result of his grandmother’s illness he returned to New Zealand. It was after his return to New Zealand that the Applicant started heavily drinking alcohol, smoking marijuana and then embarked on a series of juvenile offences between 1996 and 1999.[10]
(e)In 1998 (aged 15 or 16 years) he left school completely and started to work with his uncle in a panel beating shop.
(f)In January 2002 the Applicant arrived in Australia on a Special Category (Temporary) (Class TY) (subclass 444) visa available to citizens of New Zealand. He has not left Australia since his arrival in January 2022. Approximately one year later his mother also moved to Australia.
(g)Sometime in 2006 the Applicant met Ms CD and they commenced a relationship into which two children (now aged 15 and six years) were born. This relationship was marked by frequent separations and, during one of these separations Ms CD gave birth to a child by another father.
(h)Also, during one of these periods of separation the Applicant entered into a relationship with Ms KW which appears to have lasted from some time in 2016 to January 2018. In the course of this relationship the Applicant and Ms KW were co-offenders in an offence involving robbery in company with actual violence and when this matter came to court the Applicant gave testimony which was used by the prosecution to help secure her conviction.
[8] Ms Egan states this was when the Applicant was about seven years old, his mother says he was 11 years old at the time.
[9] Transcript of hearing 19 May 2022 at 177.
[10] G-documents at 37-38.
Courses of study
The Applicant’s record of offending and incarceration is discussed below but the Tribunal takes note of the fact that both while incarcerated and during other periods the Applicant has undertaken a significant number of training or educational courses. Some of these are set out in the report of the psychotherapist Ms Egan as follows:
“- The Marrin Weejali Aboriginal Corporation’s Better Man (Men’s DV group);
- The Marrin Weejali Aboriginal Corporation’s Anger Management program;
- Anger Management program offered in February 2021 –– 5 hrs;
- An additional Domestic Violence program offered in February 2021 – 8 hrs;
- The Odyssey House Bringing Up Great Kids program October 2021, which expands on the foundation that domestic violence doesn’t just affect partners.
- He completed the Circuit Breaker (Anger Management) Facilitator Training Course in July2021 and hopes to help other young men to steer away from violence by facilitating workshops in the future;
- To this end, he is developing a Communication Toolbox which, if he is allowed to stay in Australia, would be delivered as a DV prevention workshop, in partnership with his friend and DV prevention advocate Jeffrey Burns;
- He has participated in various DV prevention podcasts run by Belinda Shaw and in Kanat Wano’s VENUS project podcasts, where he has openly acknowledged his shameful violent actions in the past and contributed to the conversation about areas of personal growth required to end domestic violence.”[11]
[11] Egan Second Report at [34]-[35].
In addition the Applicant has submitted numerous certificates related to the completion of courses, the most relevant of which are set out below:
·Universal Class: Understanding Addictions, Stress Management, Motivational and Public Speaking 101, Emotional Intelligence, Emotional Healing 101, Domestic Violence 101, Depression Management, Anger Management (2021);
·Odyssey House: Relapse Prevention and Recovery; Mental Health Recovery (2021);
·Sanctum Centre: Anger Management (2020);
·Triple P Online: Anger Management (2020);
·Lives Lived Well: DO IT (drug offenders’ intervention and treatment) Programme (2018); and
·Australian Institute of Social Relationships: Family Violence Basic (2020).[12]
[12] Certificates provided as Applicant’s submissions [1.1], [1.2], [1.3], [1.4], [1.5], [1.7] and [1.10].
The G-documents submitted (at 145-146) also contain copies of certificates of which the following are relevant:
·Artius – Choices Plus: Recovery from Substance Abuse (2019); and
·Triple P Online: Positive Parenting (2020).
In his Statement of Facts, Issues and Contentions (SFIC) dated 2 May 2022 the Applicant also lists some other courses (such as barbering) which do not appear to be relevant to the primary issues before the Tribunal although they bespeak of some attempt to learn additional skills.[13]
[13] Applicant’s SFIC dated 2 May 2022 at [40]. There are two SFICs currently before the Tribunal, one prepared for the 2020 hearing of this matter and one prepared for the 2022 hearing. Unless stated otherwise, reference to the Applicant’s SFIC refers to the document dated 2 May 2022.
There are likewise letters from the Applicant to various support service providers seeking either information or enrolment details for their various courses related to anger management and/or domestic violence prevention.[14]
[14] G-documents at 168-172.
The Tribunal is in no position to make any evaluation as to the quality, professional standing, utility, content or outcome of any of these courses, but takes note of the extent to which the Applicant has sought active participation in them and done so over a period of years.
The Applicant has also been (and continues to be) an active participant in the 12-step programme run by Alcoholics Anonymous (AA).
Applicant’s offending record
At this point the Tribunal simply outlines the details of the Applicant’s offending record. Any discussion of the offences will be undertaken subsequently under the various criteria set out in the Ministerial Direction.
The Applicant has a lengthy record of offending both in New Zealand and in Australia.
In New Zealand he was brought before the Children’s Court on several occasions however his offending as an adult commenced in 2001 and his recorded offences include at least one offence of common assault for which he was required to pay reparation and serve a period of non-residential periodic detention.[15]
[15] G-documents at 37.
In Australia the offending behaviour commenced in May 2004 (approximately 2 years after his arrival) and persisted until October 2018 resulting in his imprisonment in March 2019. The Respondent in its SFIC (at [24]) points to a record of “approximately 48 offences over a 14-year period.”
These can be categorised as including a significant number of public nuisance offences; at least one dug possession offence; numerous offences of theft (such as stealing petrol without paying) or shoplifting and at least two offences of wilful damage. In addition, there are a series of serious motor vehicle offences which include dangerous driving, failing to stop and driving without a valid license. There are a number of offences which involve breach of bail conditions or other such undertakings. At the most serious end of the spectrum there are then several charges involving breaches of Domestic Violence Orders (DVOs); at least one of common assault and one of robbery in company with violence.[16]
[16] Ibid at 32-36.

Apart from these offences there is another alleged offence involving an altercation with another detainee which took place while the Applicant was in immigration detention.[17]
[17] Remittal bundle at 172-173.
For the sake of completeness, the Tribunal also records that the Applicant made an apparently false declaration on his incoming passenger card (dated 3 January 2002) when he failed to declare details of his criminal record in New Zealand.[18]
[18] G-documents at 337.
It is necessary to say something of the more serious of these offences, especially those about which the Applicant gave oral evidence in the Tribunal.
Traffic offences
There was one traffic offence in New Zealand in April 2001. It involved him failing to comply with the direction of a person in lawful authority. In Australia, the Applicant’s traffic history involves the commission of some 17 individual offences between June 2002 and April 2020. They range from exceeding the speed limit, unlicensed driving, failure to wear a seatbelt, dangerous driving, failure to stop a motor vehicle as soon as practicable and a failure to notify change of name or address within 14 days. Several of these offences resulted in or occurred within the framework of a police pursuit. His license has been suspended or cancelled on a number of occasions.[19] It appears that a number of these offences, dealt with together in 2011 resulted in the imposition of a short period of imprisonment.[20]
[19] For example, see Remittal Bundle at 230.
[20] G-documents at 34.
When the Applicant was sentenced in August 2018 (for a range of offences) the Sentencing Judge (Burnett J) made specific reference to the traffic offences being considered and said:
So far as the traffic offences are concerned, again, they in your instance particularly call for an element of specific deterrence. It is particularly concerning especially having regard to your traffic history which tends to demonstrate a general failure by you to recognise your responsibilities and the privilege that you have as a road user to drive a vehicle on the road. It seems that you have been given any number of opportunities now to recognise that, but for whatever reason despite even a period of imprisonment having been served, that message has not sunk in.[21]
[21] Remittal Bundle at 48.
Domestic /Family violence offences
The Applicant has been convicted of four counts involving breaches of domestic violence orders (August 2018 and March 2019 [22]) and on each occasion was sentenced to a term of imprisonment of six months. The nature of the Applicant’s domestic violence offences are set out in the Respondent’s SFIC dated 9 May 2022 as follows:
[22] G-documents at 32-33; Remittal Bundle at 179.
“30. The applicant was also convicted of two further charges of contravening a domestic violence order in the Brisbane District Court on 10 August 2018. The statement of facts produced under summons by the Director of Public Prosecutions (TB 63-64) states that these two charges involved the applicant:
30.1 Sending a number of threatening messages to Ms [KW] on 3 December 2017, whilst subject to a domestic violence order naming Ms [KW] as the aggrieved and the applicant the respondent. The messages included the applicant stating: “I am going to kill you”, “watch out”, “watch every move”, “your son I know where he lives” and “think twice before you jib me”. After sending the messages, the applicant attended at Ms [KW]’s house demanding money and Ms [KW] called the police. When the police arrived, Ms [KW] recounted that: in July 2017, the applicant sent hostile messages to her and punched to the phone; on an unknown date in August or September 2017, the applicant grabbed her by the throat with two hands after she jumped out of a car in order to get away from the applicant and on an unknown date in October 2107, the applicant struck her in the face multiple times.
30.2 Attending a department store with Ms [KW] on 19 September 2017 whilst subject to the domestic violence order.
31. The applicant was convicted of two further charges of contravention of domestic violence order on 6 March 2019 after a trial. The sentencing remarks of the Richlands Magistrates Court state that the applicant’s conduct involved:
31.1 telephoning the victim less than one hour after being served with a temporary protection order while in immigration detention stating that he knew where she lived and that he would be sending his boys around; and
31.2 three days later sending her an email stating that he had given his mate, who was a murderer, her address and to watch her back and to sleep with one eye open.”[23]
[23] Remittal Bundle at 52-60 per Magistrate Simpson.
The Tribunal notes that the transcript of proceedings before the Magistrate’s Court on 24 September 2018 reveals that the Applicant denied the charges in relation to any domestic violence matters; argued the law with the presiding Magistrate; described the court as a “kangaroo court”, the proceedings as “rubbish”, accused the prosecution of “lying” and indicated “I will be appealing my two DVO breaches for the – what I was charged on.”[24]
[24] Remittal Bundle at 222-227.
No such appeal was lodged.
Offences involving violence
There are three principal violent offences to consider.
A Queensland Police Service brief for the Court states:
“At about 12:20pm on the 22nd of June 2010 the Defendant was with two female associates at Harbour Town shopping centre on Oxley Drive, Runaway Bay.
There the Defendant was in the car-park with the associates and was confronted by a Lonsdale store attendant named [redacted] and security who asked about property they suspected him of stealing from the Lonsdale store.
The Defendant became agitated and then started yelling at [redacted] that he was going to knock him out. Security have intervened and the Defendant has started to kick out at security with his feet.
The Defendant has rushed [redacted] and started kicking his legs and then his upper body with karate style kicks to his upper body. The Defendant has kicked the victim at least five times causing pain to his wrist as he tried to block being kicked.”[25]
[25] Ibid at 624.
It is difficult to ascertain from the Police Records as to what penalty/penalties were imposed for these particular offences since on 7 February 2011 they were part of a suite of 13 separate charges on which the Applicant appeared before the Court, the majority relating to traffic offences.[26] However, convictions were recorded in relation to the charge of unauthorised dealing with shop goods.
[26] G-documents at 34-35.
The Applicant appeared in the District Court in Queensland on 10 August 2018 where again he was charged with a suite of offences described by Burnett J as:
broadly stealing, contravention of domestic violence orders, wilful damage, fraud, failure to appear, failure to stop a motor vehicle, and other minor vehicle related offences together with, most significantly, one offence of entering premises and committing an indictable offence.[27]
[27] Remittal Bundle at 47.
His Honour particularly emphasised the following serious offence:
In addition, you have a number of convictions or appearances that relate to shop stealing and failure to appear. This offending on the indictment represents a significant escalation in your offences of dishonesty. It introduces an element of violence that had not otherwise been evident in your criminal history. It is a troubling development in your behaviours. On the day in question here you, together with your accomplice, attended a mobile telephone shop. You had planned to attend the shop to steal phones. The plan was to shoplift the phones which is entirely consistent with some of your other convictions together with the matters I am dealing with today.
It seems that upon entering the shop following the enquiries made with the shop assistant you realised the plan was not going to work, but in any event your accomplice appears to have wanted to proceed. She took the phone when the shop assistant had momentarily departed from the showroom into a back room and you ran with her. You left the store. As she was doing so the shop assistant returned. She saw you leaving. She went to stop you. The shop assistant was pushed. You say it was your co-offender who pushed, but in any event the shop assistant fell and the two phones were stolen.[28]
[28] Ibid.
His Honour further remarked in respect of the above offence:
People have to be able to trade in their shops and deal with people at the counters without fear that they are going to have people stealing the product that they are trying to sell. These people are simply running small businesses. The impost upon them can be significant. These phones had a value of about $3000 or a little under. That is a significant loss to a small business operator when one has regard to the way in which they have to operate with their overheads. None of that was recovered and that factor is significant. Also they should not have to be subjected to violence in the conduct of their everyday business affairs.
It is, as I say, quite troubling and it does represent a significant escalation of your offending.[29]
[29] Ibid at 48.
There is also a record of an offence involving some violence committed while the Applicant was in immigration detention on 16 October 2018. The conduct is described as “[d]etainee assaulted another detainee by punching him on a number of occasions”. Details of that conduct can be briefly described as follows:
“This Incident Report has been raised by Detention Services Manager… at Brisbane Immigration Transit Accommodation… on the 16^th October 2018. At 1216 hrs an altercation occurred between detainee’s [the Applicant] and [name redacted]… After reviewing the footage it appeared detainee [name redacted] had provoked detainee [Applicant] by flicking the back of his head with a plastic spoon. [The Applicant] who was sitting down on the couch at the time immediately stood up and walked towards detainee [redacted] striking him approx. 4 times to the jaw area in the doorway…”[30]
[30] Ibid at 172.
The Applicant has sought to contest a great deal of the material contextualising the offences for which he has been charged or convicted although it does not appear that he has sought to make any direct challenge to the verdicts arrived at by the courts. These matters will be discussed below.
In any event, the Tribunal is prohibited from “going behind” any of the decisions of the Court,[31] although it is permitted to assess representations made which seek to contextualise the events in question and which an Applicant believes have relevance to such matters as his state of mind or personal circumstances at the time.
[31] Minister for Immigration and Ethnic Affairs v Gungor [1982] 4 ALD 575 per Sheppard J at [596]; Minister for Immigration and Ethnic Affairs v Daniele [1981] 39 ALR 649.
Furthermore, Professor Dennis Pearce, in his authoritative text on the Tribunal notes:
“However, this is not to be taken as denying the right of the applicant to present to the AAT matters pertaining to a conviction provided that they do not contradict the facts which the jury must have found in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N205. So on an application to review a deportation order based on criminal conviction, evidence may be presented that pertains to the issue of deportation and this may attempt to explain or qualify evidence given at the trial.”[32]
PART THREE: EVIDENCE BEFORE THE TRIBUNAL
[32] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 5th ed, 2020) at 163; Lee and Department of Immigration, Local Government & Ethnic Affairs (1991) 24 ALD 531.
Witness evidence: professional reports
There are before the Tribunal four reports (or sets of reports) which attest to various aspects of the Applicant’s psychological or mental health. Chronologically, these are reports dated:
·14 September 2020 by psychotherapist Ms Esperanza Egan;
·2 December 2020 by Dr Susan Pan, general practitioner at the Villawood Immigration Detention Centre;
·9 December 2021, 22 December 2021 and 17 February 2022[33] by Mr Greg Hutcheon, psychologist at the Villawood Detention Centre;
·1 May 2022 by clinical psychologist Mr Matt Visser; and
·10 May 2022 by Ms Egan.
[33] Although there is a report dated 17 February 2022, the Applicant did not in fact attend on this date, and that is essentially all the report records.
The reports by Ms Egan and Mr Visser were commissioned by the Applicant’s legal representatives and while Mr Visser had access to Ms Egan’s first report it does not appear that Ms Egan had access to Mr Visser’s report when she prepared her own second report.
The reports from practitioners at the Villawood Immigration Detention Centre may be mentioned just cursorily. Dr Pan in referring the Applicant to a psychologist asserts that he has “a diagnosis of PTSD and reported childhood trauma. Also anxious about mother possibly being diagnosed with cancer.”[34]
[34] Applicant’s submissions at [8].
The three reports by a Mr Hutcheon[35] contain references to:
·previous and confirmed diagnosis of PTSD;
·record of significant abuse suffered as a child;
·anxiety and social phobia (including nightmares) as a result of having been stabbed in the hand;
·admission of alcohol abuse and of his own abusive behaviour when affected by alcohol;
·current high level of motivation to maintain current abstinence;
·negative impact upon Applicant as a result of the death of his uncle; and
·concern about the welfare of his children with whom he is in regular contact.
[35] Ibid.
Ms Esperanza Egan is a psychotherapist with further qualifications in mental health and forensic mental health fields. She is not a psychologist. Her first report is dated 14 September 2020 and was before the first Tribunal hearing in September 2020 when Ms Egan gave evidence and was cross-examined on its content.
Ms Egan’s report[36] contains extensive details of the Applicant’s personal narrative (see above) and in terms of his medical history reports that he has a long-term reliance on substances, peaking at times of stress and accepts from a previous source (MindSpot) that he has been diagnosed with Post Traumatic Stress Disorder (PTSD).[37] This Report spends some time discussing the Applicant’s degree of “insight”:
“69. Insight is measured in three areas: (i) recognition of a problem; (ii) compliance with actions required to rectify it; and (iii) ability to re-label unusual events as pathological.
70. Mr. Dunasemant’s level of insight is a matter of great importance, as it provides an indication of his understanding of how he has come to be in his current situation.
71. Regarding (i) above, Mr. Dunasemant recognises that not having a structure and losing an authority figure have been powerful triggers for his offending. And with regards to the incidents of domestic violence, Mr. Dunasemant shows some insight in acknowledging that he has some room to grow, especially with how he speaks to women. However, it appears he still has more to learn regarding domestic violence, as he still fails to identify that verbal events such as yelling at someone can be threatening, and he questions the credibility of Ms. Whyte’s claim that she was suffering some form of domestic violence in 2017, based on the fact that she continued to live with him in spite of the allegations she raised.
72. Regarding (ii) above, Mr. Dunasemant has vigorously engaged in a process of personal growth during the past 12 months. This is evidence in all the work skills, drug and alcohol and mental health programs he has completed to date. And with regards to domestic violence, he has completed programs such as Man-Up, Circuit Breaker, Tame your Dragon and Avert Family Violence Basics programs focused on improving his capacity for positive relationships and anger management.”
[36] First Egan Report.
[37] Ibid at [57]-[59].
Ms Egan was asked to opine on the likelihood of the Applicant reoffending.[38] In doing so, she set out a table of some 20 factors to which she had given consideration. She rated 15 of those as not being relevant to the assessment of reoffending. Of the five factors which were positive in this regard, four were historic and one was a clinical item. Of the four historic items, one was deemed as unequivocally relevant to risk of future offending (early maladjustment, two were mitigated by established protective factors (previous incidents of offending behaviour and young age at first experience) and one (substance abuse) was mitigated by protective factors and by the Applicant’s claim of abstinence for previous two years. In relation to the clinical item of “lack of insight” this was rated positive for “domestic violence” but also mitigated by protective factors.
[38] Ibid at [81]-[84].
The protective factors taken into account were that, if released he would have stable accommodation (with his mother) and employment (job offers were provided); strong family ties in the community; good compliance with remediation attempts; a capacity for financial independence; a determination to be abstinent and increasing levels of judgement and insight.
Ms Egan’s conclusion regarding reoffending was:
“Interpretation of risk assessment tool results
83. Mr. Dunasemant presents
1. a low to medium loading of static risk factors against him;
2. a very low loading of clinical items against him; and
3. no loading of dynamic factors against him.”
Ms Egan was pressed on these conclusions at the Tribunal hearing on 29 September 2020 and gave the following evidence:
“Q: Just in relation to our final opinion that he’s of low risk of re-offending I take it – is that low risk of general offending?
A: I – both cases, so re-offending in the case of the criminal behaviour in case of the robbery and being a nuisance. So that part of re-offending. But then also the domestic violence charge.
Q: Yes?
A: so I’ve looked at both of them separately, is what I am saying.”[39]
[39] Transcript of hearing on 22 September 2020 at570.
As noted below, this was a matter to which Ms Egan was taken again in the hearing on 18 May 2022.
Mr Matt Visser is a highly credentialed, qualified and experienced clinical psychologist who was also asked to undertake an assessment of the Applicant. In doing so he was supplied, inter alia, with a copy of Ms Egan’s First report. In his assessment he took a somewhat different approach than Ms Egan, focussed on some different behavioural elements and conducted significantly different psychometric testing.
Among his conclusions are the following:
“At the current time, while Mr Dunasemant has received significant and appropriate therapeutic intervention, successful management of his mental health will require ongoing psychotherapy with a psychologist who specialises in trauma treatment. From both his comments and the medical notes he seems ready and willing to engage in such treatment. Further, doing so will reduce his risk of relapse and recidivism. He is also currently engaged with significant support around his drug and alcohol use, such as a willing Alcoholics Anonymous sponsor. I believe that ongoing support in that area will be essential in maintaining abstinence.[40]
[40] Visser Report at lines 152-159, Applicant’s submissions at [7].
…
While Mr Dunasemant has a history of AOD issues, he indicated that the symptoms exist outside of periods of use, meaning that his substance use is more likely symptomatic of the trauma rather than causal.[41]
[41] Ibid at lines 427-429.
…
Mr Dunasemant’s clinical profile is marked by significant elevations across several scales, indicating a broad range of clinical features and increasing the possibility of multiple diagnoses. Profile patterns of this type are usually associated with marked distress and severe impairment in functioning. The configuration of the clinical scales suggests a person with marked anxiety and tension. He may be particularly uneasy and ruminative about his personal relationships, some of which are probably not going well; these relationships may be an important source of his current distress and he may be responding to these circumstances by becoming socially withdrawn. The disruptions in his life have left him uncertain about his goals and priorities, and tense and fearful about what the future may hold.
He also indicates that he is experiencing severe, specific fears or anxiety surrounding certain situations; these fears are of a degree that is unusual even in clinical samples. His life is probably severely constricted by his psychological turmoil. Although efforts to control anxiety are probably present, these patterns are having little effect on preventing anxiety from intruding into experience and affecting functioning. The pattern of responses reveals that he is likely to display a variety of maladaptive behaviour patterns aimed at controlling anxiety. First, phobic behaviours are likely to interfere in some significant way in his life, and it is probable that he monitors his environment in a vigilant fashion to avoid contact with the feared object or situation. He is more likely to have multiple phobias or a more distressing phobia, such as agoraphobia, than to suffer from a simple phobia.[42]
…
His self-description indicates significant suspiciousness and hostility in his relations with others. He is likely to be a hypervigilant individual who often questions and mistrusts the motives of those around him. He is extremely sensitive in his interactions with others and likely harbors strong feelings of resentment as a result of perceived slights and insults. He is quick to feel that he is being treated inequitably and often holds grudges against others, even if the perceived affront is unintentional. Consistent with the constellation of hypervigilance, suspiciousness, and resentment, he probably is seen by others as being quite hostile. Working relationships with others are likely to be very strained, despite any efforts by others to demonstrate support and assistance.[43]
…
It appears that he is quite impulsive and prone to behaviours likely to be self-harmful or self-destructive (such as those involving spending, sex, and/or substance abuse) with little forethought as to the potential consequences of these behaviours. He also describes certain problems potentially associated with elevated and variable mood. His relationships with others are probably under stress, due to his frustration with the inability or unwillingness of those around him to keep up with his plans and possibly unrealistic ideas. At its extreme, this irritability may result in accusations that significant others are attempting to thwart his plans for success and achievement.[44]
…
The self-concept of Mr Dunasemant appears to involve a generally positive self-evaluation. He is generally a confident, resilient, and optimistic person, although his self-esteem may be reactive to changes in his current circumstances. During times of stress, he may inwardly be troubled by more self-doubt and misgivings about his adequacy than is readily apparent to others. Reactive changes in self-esteem may be accompanied by uncertainty about goals, values, and important life decisions.
Mr Dunasemant’s interpersonal style seems best characterized as somewhat distant and withdrawn in personal relationships. He does not appear to be comfortable in most relationships and may view routine social interactions with apprehension. Others may view him as reserved and possibly aloof, although he is more likely to perceive himself as being shy. He is likely to value his independence, although he is nonetheless concerned about how others perceive him.”[45]
[42] Ibid at lines 482-501.
[43] Ibid at lines 524-531.
[44] Ibid at lines 551-557.
[45] Ibid at lines 567-579.

Mr Visser also opined that there were potentially both positive and negative impacts possible for the Applicant’s children if he were to be deported[46] but after personally interviewing Ms CD he reported:
“I spoke to Mr Dunasemant’s ex-partner, Ms [CD], in a phone call which lasted approximately 25 minutes on the 30th of April 2022. Her overall description was consistent with other information provided and clarified the depth of issues that her children are facing currently, not only with their daughter but also with their two sons. While she seemed somewhat reluctant to speak in any depth about the issues in their history, or his mental health issues, she clearly believed that Mr Dunasemant had changed for the better during his period of incarceration. She described their relationship now as being positive, and that they speak on the phone once or twice a week. She was also clear about the role that she expected him to be able to play in her, and their children’s lives, and the support that she expected him to give.
While talking about his previous engagement with the children, she indicated that prior to 2016 he was largely at work and therefore had a relatively minor engagement directly as a father, but was supportive financially and enjoyed time with the children when he was able. In the period between 2016 and his incarceration in 2018 she commented that due to some of the events that occurred leading to their separation she was not willing to let him know where she lived, and as such only allowed him access to the children at his mother’s house, which she would visit on the weekends. She noted him as being engaged and caring during those visits, although was relatively limited in the time due to the circumstances. Since his incarceration she noted him as having made regular phone calls to the children, and that they enjoyed the contact, but it was not the same as having him there in person. She believed that there would be a significant emotional backlash for the children were he to be deported.”[47]
[46] Ibid at line 175.
[47] Ibid at lines 624-644.
Returning then to Ms Egan’s second report (10 May 2022), there are several matters to be noted. In the first instance the report is more specific about the Applicant’s previous history of domestic violence noting:
“Mr. Dunasemant engaged in acts of domestic violence in both relationships. These included at least using verbal abuse in both relationships; intimidating [CD] by kicking a door; driving a car in an intimidating manner while [KW] was his passenger; emotional abuse by accusing [KW] of damaging the relationship whenever men spoke to her; threatening [KW] by text message, phone and email.”[48]
[48] Egan Second Report at [33].
However, it then goes on to describe how the Applicant has gained greater insight into his offending behaviour:
“60. Regarding his insight into his acts of domestic violence, in addition to accepting responsibility for his actions and dedicating himself to improving his behaviours through the multiple programs he has completed, Mr. Dunasemant can now re-label the features of his relationship with Ms. Whyte as ‘Our values systems were different; we didn’t see it; I should have walked away.’
61. Regarding his insight into his breach of AVO, Mr. Dunasemant (i) has moved away from denial of the action in 2020, into acknowledging responsibility for his behaviour and states, ‘I took the bait (in the form of Ms. Whyte’s message to him) and I contacted her … I was threatening to her.’ He can re-label the event as his own failing, and states, ‘I feel very childish … it’s easier to accept responsibility for what I’ve done.’”
Ms Egan draws attention to the “incredible amount of time dedicated to his self-development”[49] by the Applicant, lists the courses undertaken and is full of praise for his heightened level of insight.
[49] Ibid at [59].
In relation to the checklist of factors referenced in her First Report, in her Second Report Ms Egan removes the criterion of “insight” from the positive (causative) column into the negative (protective) column on the basis that the Applicant:
“Has developed insight into domestic violence and continues to learn grow in this area; has strong insight and requirements for psychological stability to steer away from substances and crime; has worked to achieve those requirements, namely his emotional development and growth since 2020.”[50]
[50] Ibid at [76].
Ms Egan was asked to report what degree of change she found in the Applicant, in terms of his levels of understanding and insight between the time of the preparation of her first and second reports. She stated:
“[Mr Eskerie][51]: What was the main observation you can tell us between Mr Dunasemant back then and now?---Are you interested in the changes? Is that what you’re - - -
Yes, the changes, anything else that you as a professional found different for your - - -?---Yes, different?
Yes?---Yes. Many areas of changes.
Yes?---His level of insight. Now when I speak of insight I refer to it in mental health terms, not in any other meaning of the word. In mental health terms insight refers to a person’s capacity to understand whether there is a problem and to look at what to do about the problem. There’s been marked increase in Mr Dunasemant’s level of insight about how he came to be in the situation that he is in. Also insight into the impact of his behaviour on other people, insight on what he needs to do make himself safer in the future. There was also a marked increase in his level of judgment. Judgment is the capacity to take action in terms of mental health as it is framed in mental health terms. Judgment is about making some plans. In that regard what really stood out for me was that in spite of the length of time that he has spent in detention, and that therefore he has been not exposed to substances and substance abuse, in spite of the length of time a cornerstone of his plan moving forward, if he’s allowed to stay in Australia, is to start by going into rehabilitation with a view to having support as he goes back into the community. There’s also been an increase of awareness into the impact of his actions on people who have suffered, namely around domestic violence. So he’s really reframed the way he looks at his behaviour in the past, how it has affected the victims of domestic violence behaviours.”[52]
[51] Mr Eskerie was the Minister’s/Respondent’s legal representative.
[52] Transcript of hearing on 18 May 2022 at 68.
It was again her conclusion that the Applicant was at a low risk of reoffending based on this analysis.[53]
[53] Egan Second Report at [91].
The Minister’s representative returned to this question in the hearing on 18 May 2022. The Representative asked Ms Egan to comment on a conclusion reached by Mr Visser in his report regarding the need for the Applicant to be involved in some form of treatment to avoid the risk of recidivism:
“[Mr Eskerie] Then he [Mr Visser] says:
‘Doing so will reduce his risk of relapse and recidivism.’
You’d agree with that, that that treatment will reduce those risks?---Well, that would imply that he has a risk. If we say ‘reduce’, the words says there is a risk so I would be interested to know what risk he is presenting.
So, is it your position that there’s no risk of relapse?---My position is that given enough social, health and emotional support there is no risk. Removing those items from his life, as much as from anyone’s life, would introduce the possibility of risk.
So, if I understand that correctly it’s pretty remarkable. So, let me just ask it in this way. Are you saying there’s zero risk of relapse?---Provided he has what he is having at the moment. So, at the moment he has support networks. He has access to health support and he has social support, and he has no risk.”[54]
[54] Transcript of hearing on 18 May 2022 at 76-77.
Pressed further on how she had evaluated potential risk of reoffending in relation to domestic violence issues, Ms Egan stated:
“[Mr Eskerie]: And there’s a history of two very unstable relationships in the past?---M’mm.
And your judging whether that is relevant to future risk, how could you say no?---Because of the number of programs that he has attended in order to address the issue of violent behaviour in his relationships. He’s made it a point, he’s made it an issue, to work in those areas. He has seen that as a problem and has done everything he’s been able to do so far to address it.
No, I understand that but, forgive me, I’ll just ask again. When looking at this particular test, I thought the way it worked is you identified particular risk factors individually and separately?---Yes.
And indicated whether they are relevant for a risk of future offending?---Sure. There’s something that has been missed here. The third column, this asks risk of future offending. If you look at point two of those on page 16, it says:
If the evidence suggests that the item is present, is it relevant to the future risk of reoffending caused by the individual. This relevance is determined by the presence or absence of strengths and supportive factors.
I see?---And that’s what changes that. So, even though he’s had a couple of relations - those two relationships in his life and they became - had features of domestic violence. The fact in the courses that he’s completed , the dedication that he’s given to improve himself in that area, is strengths and supportive factors and that’s what changes that weight in that case.”[55]
[55] Ibid at 82-83.
The Respondent’s representative asked Ms Egan to indicate the extent to which she agreed or disagreed with other of the various comments and conclusions of Mr Visser. She disagreed with his analysis about his level of psychological turmoil and trauma on the basis that this assessment was highly qualified by the use of terms such as “probably” and “likely” when referring to potential future responses by the Applicant.[56] She did not agree with Mr Visser’s assessments about “hostility in relationships” and a proneness to “impulsivity”.[57]
[56] Ibid at 78.
[57] Ibid at 80.
She did agree with Mr Visser’s comments about the Applicant’s need for ongoing and intensive treatment; about his findings of alcohol and substance abuse as “symptomatic” rather than “causal” and his comments (reporting Ms CD) about the negative impact on his children of potential deportation.
Throughout her evidence to this Tribunal, Ms Egan placed constant emphasis upon her assessment that “no one had worked harder (than the Applicant) on his rehabilitation”, that his efforts at self-improvement were “remarkable” and that the more she had considered the position the more convinced she was that the Applicant, given his efforts posed “no” risk of reoffending.
“[Mr Eskerie]: That’s fine, thank you. And in terms of rehabilitation courses he has completed you explained very clearly to the tribunal how that can assist someone being inside. But from what Mr Dunasemant’s done is that consistent with somebody who is truly trying to rehabilitate?---Absolutely. I have never seen anybody be this thorough in the personal development. It’s quite - I think incredibly impressed by the amount of time that he’s given to his personal development. What I have seen him do is target the areas of what identified for him. I’ve seen him be prepared to listen, be prepared to say, “They are telling me I have these three areas of concern, and I’m going to let that input, I’m going to take that feedback and I’m going to do something about it”, and he’s focused on the areas that were targeted for him through those courses. They were DV, they were emotional self-regulation, they were substance abuse, and that’s where all of these programs have been targeting, it seems, development specifically, more so since 2020.[58]
[58] Ibid at 72.
Very respectfully, the Respondent put to Ms Egan that she had perhaps developed a heightened degree of emotional and personal attachment to a favourable outcome for the Applicant in these proceedings. She refuted these suggestions although admitting that she did see the Applicant as something of a special case in terms of his commitment to self-improvement and her firm belief that, especially as he was no risk to the community, he should be given a second chance.
Witness evidence: personal statements
General
The Applicant provided a considerable number of written submissions in support of his application before this Tribunal.[59] These consist of several Statutory Declarations[60], an affidavit[61] and a number of personal letters[62]. Each of them, to some degree addresses the extent to which they have observed either the Applicant’s participation in education or rehabilitation programmes, or comment on his relationship with his children, or express their support for his being allowed to remain in Australia. They exhibit a variety of states of knowledge of the Applicant’s offending record, or his plans should he be released into the community.
[59] There are other such letters which were put before the first Tribunal hearing – Remittal Bundle at 143, 148, 149, 150 and 167.
[60] Allison Scott (26 April 2022); Trevor Govender (26 April 2022), Zaine Greening (28 April 202) and Raewyn Burton (26 April 2022), Applicant’s submissions at [4.4],[4.6],[4.10] and [5.7] respectively.
[61] Chanel Watson (27 April 2022) Applicant’s at submission [4.9].
[62] Belinda Shaw (27 April 2022), Kanat Wano (24 February 2022), Odyssey House (24 March 20222), Jospic Raric (13 April 2022), Pacific Connect and Support Inc (undated) and Turning Point (28 February 2022) Applicant’s submissions at [5.2], [5.3], [5.4], [5.5], [5.6] and [6] respectively.
The Tribunal also noted that a number of the Applicant’s supporters from Alcoholics Anonymous attended the Tribunal hearing in person over both hearing days to give their support to the Applicant.
Children
The Tribunal received written statements from two of the Applicant’s children, his elder son (TY)[63] and his daughter (NZ).[64] The Ministerial Direction enjoins the Tribunal to give consideration to such representations and give them “due weight in accordance with the age and maturity of the child” (sub-paragraph 8.3(4)(f)). In the case of TY who is 15 years of age the Tribunal notes his submission and questioned the Applicant about it. The Tribunal accepts that TY knows something of the details of why his father is absent from their lives and while understandably being resentful of this fact, expresses a strong desire to be reunited with his father whose absence he feels and whose absence he says is reflected in his declining school attendance and grades. The Tribunal does not feel it appropriate to take into account the purported letter from NZ (aged 6 years) who, as will be discussed below, has a number of health issues and clearly had no part in the writing of the letter submitted over her handwritten name.
[63] Statutory Declaration of TY dated 26 April 2022, Applicant’s submissions at [2.1].
[64] Letter of NZ (undated), Applicant’s submissions at [2.2].
In addition to these written submissions a number of witnesses appeared in person before the Tribunal to give evidence.
Friends and colleagues
Mr Brian Hunter[65] is a qualified counsellor with diplomas in mental health and drug and alcohol counselling. He has been engaged with the Applicant through programmes at the Marrin Weejali Aboriginal Corporation. He outlined the courses undertaken by the Applicant between September 2021 and March 2022. These courses included Anger Management and Better Man (men’s domestic violence group) programmes. He had engaged weekly with the Applicant in sessions of 60 to 90 minutes each. He noted the extent to which the Applicant was focussed on his future relationship with his children.
[65] Statutory Declaration of Brian Hunter dated 27 April 2022, Applicant’s submissions at [4.5].
In his oral testimony he stated:
“[Ms Lewis]:[66] Did he mention to you any insight in relation to his previous anger or the way he used to deal with situations, and how that has changed in him? Did he share anything like that with you?---Yes, that’s - on several occasions that’s come up. And the way he conducts himself now to when - the way he previously used to act and react to certain situations is completely different now due to what he’s learnt, not only through the stuff that we work on but through the 12 step fellowship.[67]
(Ms Lewis) : Okay. I’m sorry, I’ll put it again. So from your opinion when you’re going through this 12 steps program and what you’ve noticed, you’re telling us that you can tell from your professional opinion as a counsellor that there is a change that you have perceived. Is that what you’re saying?---Yes, 10 100 per cent. And that’s even before we started working through the 12 step fellowship. You know, I’ve seen a change over the six months that we’re working with Luke. Yes, a massive change.
Okay. Do you see that massive change in everybody or?---No.”[68]
[66] The Applicant’s legal representative.
[67] Transcript of hearing 18 May 2022 at 96.
[68] Ibid at 97.
Mr Ryan Thomas[69] is the Applicant’s sponsor in the 12-step Alcoholics Anonymous programme and has worked with him since May 2021. The gravamen of his testimony was to the effect that he had seen positive changes in the Applicant as he progressed through the programme; he had noted a deepening of the Applicant’s understanding of the nature and impact of his past offending behaviour and that he believed that the Applicant “is a changed man and continues to make an effort to better himself.” He stated that he had worked with “hundreds” of clients over the years but found the Applicant particularly “inspiring” in terms of his commitment to self-improvement and in “sticking” with various courses and programmes. Mr Thomas also indicated that, through one of the steps of the 12-step programme there had been a limited re-establishment of contact by the Applicant with his father. Mr Thomas impressed the Tribunal in terms of his detailed knowledge of the Applicant’s past history, including his offending behaviour and his understanding of the Applicant’s plans were he to be released into the community which involved re-establishing contact with his ex-partner and children, his plans to enter a rehabilitation facility and his continued contacts with the Alcoholics Anonymous and Narcotics Anonymous groups either in Sydney or in Queensland.
[69] Statutory Declaration dated 26 April 2022, Applicant’s submissions at [4.7].
Mr Thomas was pressed on the question of how genuine he found the Applicant in relation to any desire the change and he stated:
“So he’s shown determination in regards to attending Odyssey House as well as doing the 12 steps, but attending Odyssey House. He’s proactively sought out treatment post this, even though probably he doesn’t need the physical treatment but he’s sought out about, like, readjusting to life outside of prison and detention. So and obviously that’s going to take some time, so he’s thought about rehab, he’s thought about – as well as halfway houses and stuff that – other programs that he can help him readjust and not put his sobriety at risk by taking on too much responsibility.
[Ms Lewis]: Would you say his determination for all that, is it genuine in your opinion?---In my opinion it is genuine and I deal with – I’ve dealt with hundreds of people over the years. I’ve been sober for nine and a half years, myself, and he is one of the few that has stuck with it. You know, it’s more people come in and don’t stick with it and for him to go through it and stick with it, given his situation, is kind of – yes, it is inspiring, yes, and it’s – yes, it is, yes. He has people around him that want to support him and there’s a big community there that are there for him, yes.”[70]
[70] Transcript of hearing on 18 May 2022 at 104.
When pressed on his knowledge of any incidents of domestic violence committed by the Applicant, Mr Thomas said:
“[Mr Eskerie]:[71] What did he say about the domestic violence incidents?---So we didn’t go too deep into them but I do know that he – he spoke to me with great remorse regarding them and I hadn’t gone – we hadn’t gone – there wasn’t – yes, he spoke to me of them with great regret, yes.”[72]
[71] The Minister’s legal representative.
[72] Transcript of hearing on 18 May 2022 at 106.

Mr Thomas also gave evidence about his understanding of the Applicant’s plans or intentions should he be allowed to remain in Australia.
“[Mr Eskerie]: What do you understand is his plan in terms of relocation if he is released from detention?---So the plan on being released is he would – the plan is to immediately visit his family and then to go to rehabilitation. Other than that it would be a very brief visit just to see them. And then once he goes through rehabilitation the plan is to go through, like, a halfway house program that would kind of adjust him to normal life, so that it would start off in – normally a lot of them just go phases, so kind of a cushion phase where you’re not working, and then working and then adjusting, and then the ultimate plan is to go back and see his family. The reason he’s staying here is because of the support network and that’s AA, like Brian in the team there through Weejali, as well as Odyssey House and – yes, they’re the kind of the three main support networks.
How long is he planning to stay here, to your knowledge?---There would be – so the plan is to do those things. That’s kind of a – it’s hard to answer that question because he’s been in detention for X amount in prison before that. So he needs to adjust, get back into life. The important thing for him is to stay sober and away from drugs and alcohol. So he wouldn’t – he would visit his kids but he wouldn’t move up there if he didn’t feel like he could keep that sobriety. So that’s the important thing to him because he knows, yes, he wants to be there for his kids but if he moved and put his recovery – he just would be in this exact same situation again.
Is it the case in terms of the plans you mentioned, that that’s the 30 aspiration?---Yes, correct.
But the specifics haven’t been discussed or finalised in any way?---There’s concrete plans been put in place which is speaking to the rehab and organising that.” [73]
[73] Ibid at 107.
Finally, Mr Thomas revealed that the Applicant had taken steps to re-establish contact with his long-estranged father. He told the Tribunal:
“[Mr Eskerie]: Now, the final question I had for you is his father. You said that he had recently reconnected with him. Can you tell us when that happened, to your knowledge?---I couldn’t tell you the date.
I mean, are we talking this year, last year?---Within - - -
Before you met?---Within the last year, yes.
Within the last year and what’s your understanding of the nature and extent of the reconnection?---So he shared that he spoke with him within the last couple of weeks about this, and just some fears and his father gave him some 30 advice which I thought was, you know – which was awesome to see.
Do you know how often they’ve been speaking?---I couldn’t tell you.”[74]
[74] Ibid at 108.
Mr Jeffrey Burns[75] first met the Applicant early in 2020 when they were both incarcerated, both having committed domestic violence offences. Mr Burns was released from custody in April 2020, and they have maintained a quite regular level of contact and participated in the Circuit Breaker programme. Mr Burns introduced the Applicant to a number of contacts of his, including Mr Kanat Wano and together, they have been involved in the development of a series of podcasts made by men who have been domestic violence perpetrators aimed at educating others about domestic violence and seeking to prevent its occurrence.[76] It appears that some of this work has taken place through a programme (Fullback) which is supported by government funding. Mr Burns’ evidence went very much to the issue of the Applicant’s deeper understanding of domestic violence issues and his desire to reunite with his children.
“[Ms Lewis]: Okay. And you’ve known Luke now for about a couple of years. Have you personally noticed changes in Luke in terms of - any changes in terms of his understanding of, you know, the domestic violence or him completing the circuit breaking program, or - based on your interaction with him, as his friend, what has changed in Luke in the last couple of years since you met him?---Yes, like he’s definitely changed a lot, because he’s definitely put himself out there to do a lot of different programs. Every time we chat, yes, he’s always sharing different programs that he’s done and - some of the programs that he’s mentioned, I’ve looked into and I’ve done some of the programs that are, sort of, run for the government, online programs. So he’s definitely changed and he’s recognised, I think, like different areas where he’s fallen short, and he’s - through he’s programs he’s put on, like, these new tools and stuff to be a better man.”[77]
[75] Statutory Declaration of Jeffrey Burns dated 27 April 2022, Applicant’s submissions at [4.8].
[76] Transcript of hearing on 19 May 2022 at 167.
[77] Ibid at 169.
Mr Burns also made reference to both himself and the Applicant being “born again Christians” whose renewed faith impels them to seek to improve both themselves and their communities.[78]
[78] Ibid at.
The Tribunal places on the record that it found each of these three witnesses to be people of obvious integrity and sincerity and, although they are personally committed to the welfare of the Applicant and regard him as a friend, their testimony should be taken as being entirely truthful and of significant weight.
Family members
Mrs MD is the Applicant’s mother. She provided an initial (undated) letter[79] to the first Tribunal hearing in September 2020 (first letter) to which she also gave oral testimony, and a subsequent Statutory Declaration dated 25 April 2022.[80] In her first letter she set out the details of the Applicant’s early life in New Zealand (as outlined above) but made it clear that she was anxious to see her son resume his relationship with his children and give financial and emotional support to his former partner (Ms CD). She also outlined her recent health problems and stated, “I am not getting any younger. I would appreciate and be blessed to keep my son close to me.” In her Statutory Declaration she repeated these submissions and added further details of her increasing compromised state of health, following cardiac surgery; her concerns for the wellbeing of her grandchildren and her observation that her son had had “time to reflect on his past and he wants the opportunity to prove that he will be a good father, respect the laws of the land and work once again to provide for his families (sic) need and to be part of the community”. She also wrote of her “healthy relationship” with Ms CD and her role in support for the grandchildren. She wrote that she wanted her son to stay in Australia so he could “live with me, so he can live with family and co-parent with [CD]”.
[79] Remittal bundle at 742-743.
[80] Statutory Declaration of Mrs MD dated 25 April 2022, Applicant’s submissions at [4.2].
Mrs MD elaborated on all these elements of her representations in her oral testimony to the Tribunal taken via Microsoft Teams video-link. In this testimony she particularly stressed the need for the Applicant’s children to have a father figure in their lives and for the Applicant to be able to relieve Ms CD of the considerable burden of their care and support. She told the Tribunal that she had a home in Logan (Queensland) which was large enough to accommodate both herself, the Applicant and all of the children when they visited which she stated, was approximately every second weekend in current circumstances:
“[Ms Lewis]: You mention in your statement that you want Luke to be allowed to stay in Australia to live with you, so he can live with family and co-parent with [CD] which I’ll get to in a second. But is it important for you to have Luke around physically or - - -?---It is important for me to have Luke around as I live on my own with a cat and a dog, and there’s things that I can’t do which I know he could do for me and I just believe that Luke has served his time and I think in reflection too, he’s had lots of time to reflect on what has been and what is - now he is a different - I see him in a different light.
Can you elaborate on that? What do you mean? What have you seen that’s changed in Luke?---I see that he wants to be present in his children’s life. I see the joy when his children are on the phone talking to him. I just feel that he should be - have the right to be a father to his children and it would alleviate some of the stress that [CD] has to face because of some of the needs of the children. It would help her and the children.
Do you think he can do the same sort of role if he were to be deported to New Zealand?---No.
Why not?---Because it’s been hard now with him being incarcerated, he can’t - it’s the being there. He’s got a teenage son that needs his father. He’s got a daughter that’s got high needs. The middle son, I just feel that you can’t parent from a distance, it’s not hands-on. Even though he’s not hands-on now but he could have the opportunity to be hands-on.”[81]
[81] Transcript of hearing on 19 May 2022 at 179.
The Tribunal accepts from her genuine and impressive testimony that she has a deep commitment to all members of her family – son, grandchildren and to Ms CD (and is also close to Ms CD’s mother). She desires to have her son close to her to support her after her own health has declined and in order to provide support for Ms CD and her children. She spoke of noting a major change in her son who had now “left that old Luke behind. He’s a different person”[82] as a result of his more recent life experiences.
“[Ms Lewis]: Did you notice that yourself in your son? Did you notice his maturity or anything that has changed?---Yes, I’ve noticed a shift, a whole shift in his attitude. Like, he’s very proactive and, you know, keeping contact with the children, you know, trying to help them out with their schooling needs and but there’s only so much you can do from a distance. So I do feel that he’s made major grounds in his attempt to rehabilitate.
Thank you for that. So you’re mentioning a shift in his attitude and rehabilitation. So beside the children what else did you notice in him personally after those courses that you mentioned?---Just that he’s more positive, he’s focused. He’s got a direction. He knows what he wants. I think that’s a big step as to know what you want and how to get there. Those are steps that you have to take to get somewhere.
When would you say you noticed that shift? Has it happened recently or - - -?---No, I’ve noticed it over time, the last two years I’ve seen, maybe longer, I’ve seen that he’s very - what is the word? I can’t think of it. You know, regretful for the things that have happened.[83]
…
You mentioned that he would be a good father. So in your opinion why do you think he will be a good father for his children?---Because Luke knows what it’s like to grow up without a father and he does not wish to do that to his own children. He has regrets. He regrets the fact that he’s where is in the situation that he is in and wants the opportunity to be a parent and be present in his children’s life to make a difference.
Thank you for that and can you just tell me, my final question, how would - if he were to be deported, so if the tribunal makes a negative decision, how would that affect you personally?---It would affect me a great deal because at least with my situation now I know that he’s here. It would be a lot harder for me to even travel back to New Zealand, financially for me I couldn’t do that. And the fact that he couldn’t have that contact with his children would be detrimental to me, to my wellbeing.”[84]
[82] Ibid at 181.
[83] Ibid at 179-180.
[84] Ibid at 179.
Finally, Ms MD confirmed that she had not had any contact with her previous husband for many years, that she had very few family members in New Zealand, other than one brother in very poor health and that while she had two children there from a previous marriage she was not in contact with them, other than suggesting that one of them had been institutionalised due to mental health problems. She had not returned to New Zealand on a regular basis since her arrival in Australia some 17 years ago.
The Tribunal found Mrs MD a compelling and truthful witness and has no basis to do anything other than accept her testimony in full and at face value.
Ms CD[85] is the Applicant’s ex-partner and mother of two of his biological children, and of one other child by a different father. She gave evidence to the Tribunal about the health challenges facing each of her children. TY is apparently uncommunicative, facing adolescent health and developmental issues which she believes “only a father” can help him address and is falling behind in his school work.
[85] Statutory Declaration dated 25 April 2022, Applicant’s submissions at [4.3].
Her son AS (not the biological son of the Applicant) (now aged 11 years) is having some major behavioural issues which Ms CD finds difficult to manage and which she attributes, in part, to a lack of male role model in his life. These appears to have developed particularly over the past two years. AS has problems with both dyslexia and dyscalculia and is prone to aggressive outbursts. AS is being seen by a psychiatrist on a monthly basis. At hearing, she gave evidence as follows:
“[Ms Lewis] How old is [TY]?---[TY] is 15.
Fifteen years-old. And in your observation between yourself and [TY] and Luke, how has Luke been a father to [TY]?---Yes, [TY] and Luke have their - like their mobile numbers and Luke also uses Duo to contact the children so have to - so [TY] has said that yes, Dad’s - I said, ‘Have you talked to dad lately?’ They go, ‘Yep, yep.’ Yes, I would say that here’s good communication over the phone but not - and I don’t feel it - like there’s not a lot of information flowing because [TY] is not one to talk on the phone. I have to try and bribe him to have a conversation with him sometimes, like I will tell him, ‘Let’s go and get you an energy drink so we can have a chat’ and it’s like trying to pull a tooth out, so - it’s the age where they don’t really like to communicate but I feel it’s okay, yes.
Do you think that could change if he has the chance to spend face to face time with his father?---One hundred per cent, you know, he’s . He has some health issues that only a father should be talking to him about. I’ve had 20 the unfortunate discussion with him - well, not unfortunate but the discussion of - and which I (indistinct) Luke could be part of. So when he - or if he is able to come out, he’s got a list of things he has to do (indistinct) with his son.
And you don’t think that would be the same if were to talk to him about that from New Zealand?---Most definitely. As I said, he doesn’t like talking on the phone. It has to be face to face, it has to be physical were Luke will take him somewhere and just have that chat, or at home, whichever, but it’s not something he can talk over the phone with.
And how about your middle son, [AS] ?---Yes, [AS] is ten, he will be 11 at the end of this month and, you know, he is a great kid but he also has some behavioural issues that started just - I think he was like nine, so it was around the same time my oldest boy got like his - all his hormones and everything and testosterone levels were rising and so he just started having a lot of issues at school, majority, with teachers and anyone that would get in his way. There was - yeah, it’s kind of come good at school but there’s still moments where he - he needs that father model - he needs his dad. He needs his someone to help him with communicating is one area and another, I would say is, you know, if he’s not feeling great then, you know, he has a way of communicating that. Because he’s a boy, he’s not a female, I can’t relate. I try my best, and I’ll use Google if I have to, but I’d rather, you know, Luke be there; take some, you know, heat off me for those boys’ troubles. But yes, no, he’s great. I would just say that he needs his dad more so than ever.”[86]
[86] Transcript of hearing on 19 May 2022 at 187.
Their daughter NZ suffers complex health problems, especially acute asthma, so much so that she has had to be helicoptered from a regional Queensland city to the Children’s Hospital in Brisbane on a number of occasions. NZ has been in receipt of some support under the NDIS[87] but it appears that ongoing funding is now a current matter of dispute. NZ has been provisionally diagnosed with Developmental Coordination Disorder (on the DSM-V ref 315.4(F82)) and her behaviour appears to be consistent with Autism Spectrum Disorder findings:[88]
“Can you tell us about your daughter? We understand there are some significant health issues. Can you just walk us through that?---Yes. So it started at 10 months, when it’s just old, with her eczema then asthma; 30 trips with the hospital admissions and including four in ICU, paediatric ICU, which those three out of four were through, like, with a helicopter… to [the] Children’s Hospital, and one via ambulance down there. Then came the speech and language delay, and as she got older I was able to access NDIS to get that help with the specialists that she required, and only recently I’ve just been - NDIS have cut her funding because she doesn’t - apparently she’s not eligible because of evidence of her permanent disability, which is development coordination disorder and general anxiety disorder. There are other traits that she had that required further testing, but with the NDIS cut I don’t have the funds to afford testing, so currently we are just - I’m looking into community avenues and waiting on a paediatrician appointment so we can get the ball rolling to appeal NDIS’s decision. But yes, she has got learning difficulties, traits of ADHD, traits of ASD, and her counsellor is helping me with maybe doing some more testing for something, yes, but - sensory processing disorder, all that sort of stuff.[89]
…
How would you describe the relationship between Luke and your daughter?---If [NZ] was here she would be at me all the - going ‘Daddy, daddy, I want my daddy’, and ‘Can we do filters.’ She just loves and misses her father. She continues daily, ‘When can we see my dad’, ‘When can dad come here’, ‘Is he going to be at nanny’s when we go to nanny’s’, because that’s the last time dad was there - Luke was there.”[90]
[87] NDIS Progress Report dated 20 December 2021, Applicant’s submissions at [3.3].
[88] Confidential Psychological Report; Mylne Street Mental Health Pty Ltd dated 12 November 2021, Applicant’s submissions at [3.1].
[89] Transcript of hearing on 19 May 2022 at 188.
[90] Ibid.
In both her Statutory Declaration and her oral testimony Ms CD referred to the pressures and difficulties she faces as a sole parent caring for three children in such circumstances and her need for both physical and emotional support for them from the Applicant.
“You also mention it will affect you personally. How would Luke not being able to be released will affect you personally?---Well, it’s just going to affect myself, our children tremendously. It’s literally - I’ve tried not to put too much hope, but I’m really, really hoping that he is able to get out and see his children and just give myself a little bit of a break. I mean, I love my children - I love our children, but you know, it’s tough. There’s a lot of decisions to be made, and when you have three different, unique, challenging personalities, it takes a toll. So having the parents and other parents, their father, present taking some of the weight off my shoulders, that would be such a relief.
Did Luke help you financially before? Will he be able to help you financially, or did he help you financially before?---Yes. Yes, he has helped tremendously - I keep saying that word. He has helped a lot financially, and, you know, the child support has always been paid. He regularly calls and checks in and sees how I am going. And understands that I need a break, but - as much as he can do he does do while he’s there. I can only imagine what it will be like when he is out.”[91]
[91] Ibid at 189.

As such, the representations made by the Applicant in relation to the degree to which he claims he has changed, developed insight, accepted the fact that his past behaviour was unacceptable in Australian society and committed himself to a programme of reform and rehabilitation must be given serious consideration. They may, in themselves, constitute part of “another reason” for the revocation of the visa cancellation.
Non-refoulement
The Applicant’s SFIC (at [88]) states, in relation to the non-refoulement criterion that “this consideration is not relevant in this case”.
The Respondent in its SFIC (at [58]) notes the Applicant’s concession “that this factor is not relevant to the determination of this application.”
The Tribunal is aware that any court potentially reviewing a decision of this Tribunal will not approach its task with “an eye keenly attuned to the perception of error”[204] but nevertheless notes that in his Personal Circumstances form in answer to the question:
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘yes’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
Yes I have given evidence against my co-offender [name redacted] and she has connections with the Mongrel Mob NZ & Australia.”[205]
[204] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 at 490.
[205] G-documents at 74.
It is not sufficient for an applicant to rely upon a claim made, however tangentially, to enliven detailed consideration under this criterion. Nevertheless a claim has been made and there will be jurisdictional error where the Tribunal “fails to consider a claimed risk of harm to the claimant if returned to his or her country of nationality”[206] or acted so as to “ignore the matters raised by the applicant as to the risk of harm”.[207]
[206] FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [30].
[207] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [44].
In Adams I recently considered a claim made in almost exactly the same form and circumstances (and citing the same notorious gang) and stated:[208]
[100] The Tribunal notes that this allegation of fear of the gangs has not been raised by the Applicant as the basis of an application for a Protection Visa nor was it raised specifically in relation to non-refoulement obligations.[209] However, to hold an unrepresented and not particularly sophisticated applicant to technical requirements along these lines is not in keeping with the spirit of the review purposes of the Administrative Appeals Tribunal Act 1975 (Cth).
…
[102] If the fear has any substance, the Applicant is able to make an application for a Protection Visa, consideration of which would have the effect of putting on hold any potential deportation until such a claim was resolved.[210]
[208] Adams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 831.
[209] MD90 para 9.1(5).
[210] MD90 para 9.1(3).
The authorities make it emphatically clear that it is not the role of the Tribunal to make the case for the applicant that he/she does not make for themselves:
The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.[211]
…
Thus, the Minister is not obliged to take account of any non-refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials “do not include, or the circumstances do not suggest, a non-refoulement claim”.[212]
[211] Plaintiff M1 at [25]. Citations omitted.
[212] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at 407.
The non-refoulement provisions of the Ministerial Direction (at 9.3(1)) make it clear that claims for consideration under this criterion must be based upon “risks of a specific type of harm” as identified in the international conventions which are referenced in that section.
The High Court has made it abundantly clear that only those obligations which have been incorporated into the municipal law of Australia by a direct enactment of the Commonwealth Parliament establish a basis for a claim by an applicant in relation to non-refoulement obligations:
Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decision-maker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error — they are not part of Australia’s domestic law.[213]
[213] Plaintiff M1 at [29]. Citations omitted.
Although the “fear” of harm has been raised in the documents submitted by the Applicant, as he has advanced no substantiation of, or further representations on this matter, the Tribunal cannot take it further into account for the purposes of these proceedings.
The criterion of non-refoulement counts neutrally neither for nor against the Applicant.
Impact on victims
Sub-paragraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
In its SFIC the Respondent states (at [62]):
“There is no evidence in respect of the impact of the Tribunal’s decision on any victims of the applicant’s criminal behaviour or their family members. This consideration is therefore not relevant and weighs neutrally.”
The Applicant in his SFIC states (at 18):
“There is no evidence in relation to the impact of a decision not to revoke on any victims or their family members in this case.”
With due respect to both parties, they are wrong on this point.
There is an identifiable victim, namely Ms CD. She has been identified by the Respondent as a victim of domestic violence by the Applicant.[214] She also made both a written submission in support of the Applicant and appeared before the Tribunal as a witness.
[214] Remittal bundle at 423; Transcript of hearing on 18 May 2022 at 13-14.
Ms CD is clearly a “member of the Australian community”, but she is also a “family member” as made clear by the Federal Court in Deng.[215]
[215] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 at [156]-[157].
An analogous matter arose in the case of PGDX where the Tribunal had before it evidence of an applicant who had committed a serious sexual assault against his wife who then came forward to the Tribunal to advocate against his removal from Australia and told the Tribunal of her need for the applicant to remain to provide financial support for herself and her child. The Federal Court held that the Tribunal was “wholly correct” in identifying the applicant’s then partner as a “victim” for the purposes of the Ministerial Direction in the circumstances as presented.[216]
[216] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [74].
Initially the Tribunal upheld the Minister’s decision to revoke the Applicant’s visa but on appeal, the Federal Court (in setting aside the decision) said:[217]
However, there is nothing in the Tribunal’s reasoning to suggest it understood that Ms K PGDK’s status as a victim had required it to give specific consideration to the impact on her of a decision to revoke PGDK’s visa cancellation ‘where that information is available’.
That information was available. It was not open to be ignored.
Contrary to the submissions the Minister advances, I am satisfied that information was effectively ignored by the Tribunal. In particular I am satisfied that the Tribunal was mistaken in its conclusion that all of what Ms K PGDX had stated in her testimony related to “what she perceive[d] to be in the best interests of her minor son Child S.”
As a mother it would have been surprising if the gravest of the concerns of Ms K PGDX had not related to her child’s wellbeing. But her evidence was not confined to that. She advanced, albeit modestly, her own claims.
She informed the Tribunal that the impact of permitting PGDX to remain in Australia would be of benefit to her. It would make her life a little bit easier.
Such humble evidence had to be taken into account pursuant to cl 14.4 of Direction No 79 and its import weighed in the balance of the matters required to be addressed by the Tribunal pursuant to Direction No 79.
To revert to Rangiah J’s reasoning in Viane cited above at [27] the effect of Ms K PGDX’s evidence was that as PGDX’s ex-wife she had suffered as his victim and now faced being adversely impacted again if the Tribunal made a non-revocation decision.
Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.
[217] Ibid at [82]-[89].
The Court's decision in PGDX was recently considered by the Tribunal in JSMJ. In that case, Member Bellamy explained that the ratio of PGDX ought to be seen only as requiring that the adverse impact on victims of any cancellation or non-revocation decision must be considered at some point in the Tribunal's reasoning. However, where a cancellation or non-revocation decision might adversely impact a victim, who is also a member of the Applicant's family who is either an Australian citizen or a person with a right to reside in Australia indefinitely, the best interests of that victim are better considered by reference to the Applicant's ties to Australia. There is, as Member Bellamy pointed out, no reason why a victim's interests "should be taken into account twice merely because [they come] within the purview of two Other Considerations".[218]
[218] JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 at [223].
The same point was made by Perram J in Bale where His Honour discussed the question of whether “in revocation decisions involving domestic violence it will be necessary to consider the impact on a spouse both as a spouse but also as a victim of crime.”[219] He concluded:
Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously.[220]
[219] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [21].
[220] Ibid at [26]. Citations omitted.
Such an approach was approved in the Full Federal Court holding that:
That is to say, the Tribunal considered the impact of any non-revocation of the cancellation of the appellant’s visa on Ms A and Ms B, the victims, which led to a weighting heavily in favour of revocation. The Tribunal implicitly acknowledged that it would have been a duplication to then give a further weighting in favour of revocation on the basis of the same considerations under other consideration (d). There is no error in that approach.[221]
[221] XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [52]. Citation omitted.
The Tribunal agrees that there should be no “double dipping” in relation to consideration of this matter under two separate criteria, but in this instance believes that it is more appropriate to consider this matter as it relates to the Applicant’s wife’s status as a victim.
The strength of the submission made by Ms CD and the supporting evidence drawn from the reports of Ms Egan and Mr Visser lead the Tribunal to find that this criterion weighs significantly in favour of the revocation of the visa cancellation.
Impediments if removed
It goes without saying that almost any applicant removed from Australia, especially if they have lived here for many years and have close family ties will suffer a degree of impediment if removed. The specified matters for consideration in the Ministerial Direction (at 9.2) focus on the applicant’s age and health status, his linguistic and cultural understanding of his place of nationality and the social, medical and/or economic support available to them in that country.
The Applicant is 40 years of age, relatively young. He is physically fit and has been working to enhance his fitness. In response to the question “Do you have any diagnosed medical or psychological conditions” in his Personal Circumstances form, the Applicant ticked the “NO” box.[222]
[222] G-documents at 74.
Mr Visser has made a formal diagnosis that the Applicant suffers from Post Traumatic Stress Disorder (PTSD: ref DSM-V 309.81)[223] and this condition is referenced by both Ms Egan and Dr Pan. Mr Visser relates this diagnosis to “the cumulative effect of the experiences of his childhood had a long-lasting impact on his mental health”.[224]
[223] Visser report at lines 116-119.
[224] Ibid at lines 124-125.
In his SFIC (at [91]) the Applicant asserts:
“Furthermore, the Applicant was abused by his own father and in school in New Zealand and deporting him back with no support network will only lead to a relapse in his condition as confirmed by Matt Visser, psychologist.”
It is important to remember than in terms of considering access to health services, the comparator is not the health services of another country (in this case New Zealand) compared with health services in Australia, but rather whether the Applicant would have the same level of access to those services as “is generally available to other citizens of that country” (Ministerial Direction at 9.2).
Two points arise. In the first instance there is nothing put forward by the Applicant to assert that he would be disadvantaged vis-à-vis other New Zealanders in relation to (mental) health care services in New Zealand.[225] Indeed, as a citizen it may well be that he has more rights of access than he does as a non-citizen in Australia, although the Tribunal makes no findings in that regard. Secondly, the Applicant has put nothing to the Tribunal to impugn the health system of New Zealand. In Muzika the Full federal Court considered similar issues in relation to the health system in Canada in exactly this light while upholding the Minister’s decision on a visa cancellation.[226]
[225] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 215 at [50].
[226] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89 at [37]; [45].
The Tribunal should also consider[227] that while it is true that the Applicant would suffer some short-term impediment in re-establishing himself in New Zealand resultant from separation from his AA support network in Australia it might take some time to connect with support services (such as Alcoholics Anonymous)[228] there.
[227] LRMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1039 at [28].
[228] Alcoholics Anonymous (New Zealand): <>
The Applicant is otherwise familiar with the language and culture of the country and has experienced living there for many (at least 17) years. He has employable skills and should not be overly disadvantaged in finding employment.
The Tribunal also accepts that there would be impediments in terms of removal from his family in Australia although it would not be impossible to maintain a high level of regular personal communication. What is less clear is the extent to which, as revealed in the Tribunal hearings,[229] the Applicant has re-established any degree of contact with his father and what effect this might, possibly, have in ameliorating the separation from other family members.
[229] Transcript of hearing on 18 May 2022 at 108; 19 May 2022 at 147-148.
The Tribunal finds that in relation to this criterion it counts in favour of the Applicant to a limited degree.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
Clearly the members of the Applicant’s immediate family are impacted here. However, because the Tribunal must not “double dip”, it is not necessary to further consider the position of Ms CD or her children as they have already been addressed as either “victims” or in terms of the best interests of minor children.
That effectively leaves for consideration the impact of the Applicant’s possible removal on his mother Mrs MD who, although a New Zealand citizen is encompassed in this criterion. Moreover, it was the alleged failure of previous decision-makers to evaluate the claims made by Mrs MD about the potential impact upon her of her son’s removal that caused those decisions to be quashed by the Full Federal Court.[230] However, the Full Court made it equally clear that while it was a material consideration, the question of how determinative it might prove to be in the final assessment was entirely a matter left to the then decision-maker (this Tribunal) once that consideration had been undertaken.
[230] Dunasemant v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 13 at [52]-[61].
The Tribunal has referred above to the evidence given by Mrs MD both in writing and orally and so need not dwell at any length on its again here.
Suffice to say that in both written and oral submissions Mrs MD pleaded for her son to be allowed to remain in Australia. In her first (undated) letter she puts to the Tribunal that “I am not getting any younger. I would be blessed to keep my son close to me.” In her Statutory Declaration (25 April 2022) she indicates that since her first letter she has suffered a severe setback in terms of her health (requiring open heart surgery), her capacity to manage financially and her ability to provide support to Ms CD and her grandchildren, with whom she has a close and on-going relationship. She states her desire to have her son “live with me, so he can live and co-parent with [CD]”.
The Tribunal accepts the gravamen of these submissions.
Under this criterion the Tribunal is also require to consider any impact which an applicant’s removal might have upon “Australian business interests” (9.4.2(3)), although this itself is qualified by reference to “major projects” or “important services”. Clearly there is nothing in relation to this aspect of the Ministerial Direction which requires further consideration.
The Tribunal finds that this criterion must count in favour of the Applicant and that it does so to a significant degree.
PART SEVEN: CONSIDERATONS AND CONCLUSIONS
An essential element of the Applicant’s case is that he be given “a second chance”.
Deputy President McCabe in Do and Minister for Immigration and Border Protection reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful … after all: we are a nation built on second chances.[231]
[231] [2016] AATA 390 at [23].
In Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, in “recognition [of] his life changes”[232] since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[232] The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].

The centrality of rehabilitation to the operations of the criminal justice system was emphasised by Senior Member Cameron as follows:
[T]he Australian nation has always been prepared to extend the hand of compassion, assistance and humanity…… [T]he Australian community has always recognised the concept of rehabilitation and a second go.[233]
[233] Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [90] and [91].
Access to that second chance must be dependent upon the Tribunal making an assessment that the applicant in question is sincere in his/her commitment to reform and rehabilitation and that the efforts made to date have been, as far as can be ascertained, genuine and legitimate.
In this instance the Tribunal finds it extraordinarily hard to settle on a firm conclusion. The Applicant was clearly less than full, frank and truthful with the first Tribunal and this Tribunal cannot simply ignore the Respondent’s proper warning to be cautious about accepting that what the Applicant says now is not simply designed to achieve, on this occasion, a favourable outcome.
The Tribunal gives credit to the Applicant in terms of how he appeared before it in the two-day hearing and his engagement in the Tribunal’s processes. On the other hand, while the original decision-maker (the Minister) did not have the advantage of personal observation of the Applicant, the first Tribunal did, and this is not an irrelevant consideration.[234] Equally, the Tribunal is aware of the clear warning from the High Court about “the dangers of too readily drawing conclusions about truthfulness or reliability solely or mainly from the appearance of witnesses.”[235]
[234] Georges and Minister for Immigration and Ethnic Affairs (1978) 1 ALD 331 at 334.
[235] Fox v Percy [2003] HCA 22 at [30] per Gleeson CJ, Gummow and Kirby JJ.
The contentions here are genuinely finely balanced however the Tribunal is prepared to accord the Applicant the “benefit of the doubt”[236] and accept that he has made and will continue to make genuine efforts at rehabilitation, self-improvement and community contribution. This counts materially in his favour.
[236] Branson J in Jian Li v Minister for Immigration and Multicultural Affairs [1999] FCA 870 at [7] approved the use of this standard reflecting “the fact that hearings before the Tribunal are not part of an adversarial process, and commonly, evidence in support of, or contradictory to, an applicant's claim are not available to the Tribunal.” It was also not disapproved of in Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] 130 ALR 367.
Eventually, the central and determinative feature of decision-making must be by reference to the calculus deriving from the findings made in respect of each of the mandated criteria with the caveat that primary considerations will usually (but not always) be given a greater degree of weight. In this instance the Tribunal has found, in relation to the question of revocation, considerations of:
(a)the protection of the Australian community count moderately against
(b)family violence count against to a limited extent
(c)best interests of minor children count significantly in favour
(d)expectations of the Australian community count against to a limited extent
(e)non-refoulement count neither for nor against – a neutral outcome
(f)impact on victims count significantly in favour
(g)impediments if removed count in favour to a limited degree
(h)ties to Australia count significantly in favour.
The calculus clearly resolves in the Applicant’s favour, primarily because the Applicant’s children, their mother and his mother have claims which cannot be gainsaid and which must overbear those more associated with the protection and expectations of the community, against whom the Tribunal does not believe the Applicant now poses an unacceptable risk of reoffending.
To this should be added the credit which the Tribunal is prepared to grant the Applicant for his personal efforts at rehabilitation, constituting an element in the constellation of factors comprising “another reason” supporting the revocation of the visa cancellation. The Tribunal trusts that its faith is well placed.
PART EIGHT: DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 282 (two hundred and eighty -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 22 June 2022

Date(s) of hearing: 18 and 19 May 2022

Solicitors for the Applicant: Ms M Lewis, Crossover Law Group

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers

Date(s) of hearing:	18 and 19 May 2022
Solicitors for the Applicant:	Ms M Lewis, Crossover Law Group
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers